A Criminal Record Shouldn't Be a Life Sentence to Poverty
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GETTY PLATT IMAGES/SPENCER A Criminal Record Shouldn’t Be a Life Sentence to Poverty By Rebecca Vallas, Sharon Dietrich, and Beth Avery May 2021 WWW.AMERICANPROGRESS.ORG Contents 1 Introduction and summary 5 Clean slate in the states 12 Fair chance licensing in the states 21 How Congress can learn from the states 23 Lessons learned and observations for policymakers and advocates 27 Conclusion 27 About the authors 28 Appendix 30 Endnotes Introduction and summary Following America’s failed experiment with mass incarceration and overcriminalization, an estimated 70 million to 100 million Americans now have some type of criminal record.1 While felony records carry the greatest stigma, in the digital era, any record—no matter how old or minor—can stand in the way of reentry, economic stability, and full participation in society. The proliferation of criminal background checks alongside the sharp rise in the share of the population saddled with the stigma of a record—which has reached 1 in 3 U.S. adults2—have become major drivers of poverty and racial inequality in the United States. Nine in 10 employers, 4 in 5 landlords, and 3 in 5 colleges and universities now use background checks to screen out applicants with criminal records.3 Often called “collateral consequences,” the resulting barriers to employment, housing, education, and other basics put economic stability, let alone upward mobility, out of reach for tens of millions of individuals and families—disproportionately from communities of color—who have been affected by the U.S. criminal legal system. Black, Indigenous, and Latino communities have been particularly harmed by the dramatic increase in the number of people with records. Decades of biased policing and charging have resulted in people of color disproportionately bearing the brunt of mass incarceration and overcriminalization in the United States, and likewise, the criminal records crisis has also exacerbated stark levels of racial inequality. A recent study by the Brennan Center found that people who have been incarcerated see their subsequent earnings reduced by an average of 52 percent, with an average lifetime earnings loss of nearly half a million dollars; in the aggregate, people with criminal convictions face lost wages in excess of $372 billion every year.4 As Michelle Alexander argued in her watershed tome The New Jim Crow, mass incarceration and its often lifelong collateral consequences serve as core underpinnings of the fabric of structural racism that defines much of 21st century American society. Black, Indigenous, and Latino people are disproportionately criminalized and more likely to have a record and be treated unfairly across society because of it. 1 Center for American Progress | A Criminal Record Shouldn’t Be a Life Sentence to Poverty The consequences ripple forward generationally, with a host of far-reaching negative impacts on families and children. A prior analysis by the Center for American Progress found that nearly half of U.S. children now have at least one parent with a record.5 The economic barriers associated with a parent’s record function as what child development experts call an “adverse childhood experience,” jeopardizing children’s cognitive development, school performance, educational attainment, and even their earnings and employment in adulthood. The legacy of incarceration is also distributed unevenly among white, Black, and Latino children: Approximately 1 in 9 Black children and 1 in 28 Latino children have an incarcerated parent, compared with roughly 1 in 57 white children.6 Prior to the COVID-19 pandemic and the resulting economic downturn, workers with criminal records were already facing a permanent recession of their own. According to the Prison Policy Initiative, the prepandemic U.S. unemployment rate for people with records was in the double digits, while the overall unemployment rate was 3 to 4 percent.7 Shutting people with records out of jobs comes at great cost not only to individuals and families, who face entrenched poverty and often a cycle of recidivism when good jobs are out of reach, but also to the U.S. economy as a whole. Prior to the pandemic, estimates put the cost of employment losses among workers with records at $87 billion annually in lost gross domestic product, on top of the nation’s expenditures on mass incarceration of $80 billion to $182 billion each year.8 Critically, the lifelong consequences of a record stand in sharp contrast with the realities of redemption and recidivism. Empirical research confirms that once an individual with a prior conviction remains crime-free for four to seven years, their risk of recidivism is no greater than the risk of arrest among the general population. People with records are thus treated as “criminals” long after they present any significant risk of committing a future crime—relegated to the ranks of a permanent underclass for no reason with any sound basis in public safety. Again, the stigma of a record creates greater hurdles for people of color; for example, a seminal study by Devah Pager found that white men who indicated a conviction record on their job applications received more job callbacks than Black men without records, with Black men’s callbacks dropping by an additional two- thirds when they indicated a record.9 2 Center for American Progress | A Criminal Record Shouldn’t Be a Life Sentence to Poverty In order to address the life sentences to poverty that tens of millions of Americans are currently serving—and which no judge ever handed down—CAP teamed up with Community Legal Services (CLS) in Philadelphia in 201410 to propose a new idea called “clean slate”: making criminal record clearance both automatic and automated, so that everyone eligible to have their record sealed or expunged can access the benefits of record-clearing, regardless of whether or not they are able to afford a lawyer to help them navigate the often byzantine petition process. Research has documented that fewer than 10 percent of Americans who are eligible to have their records cleared are successfully able to do so, due to the immense cost and complexity of petition-based court systems.11 Meanwhile, the National Employment Law Project (NELP) has supported state leaders in adopting another new idea called fair chance licensing, which reforms state occupational licensing laws that impose unfair and unnecessary barriers to employment for people with records, restricting access to jobs in fast-growing industries such as health care, education, and transportation. Today, nearly one- quarter of U.S. workers need a government license or certificate to work in their chosen fields, and applicants for those credentials are typically required to clear strict background checks with broad exclusions that do not advance community health and safety or broader economic stability and growth.12 In 2016, with support from the W.K. Kellogg Foundation, CAP, CLS, and NELP teamed up to launch a three-year initiative focused on supporting state leaders in advancing clean slate and fair chance licensing policies in the states. In the years since, bipartisan momentum for both clean slate and fair chance licensing has exploded, with dozens of states advancing these policy reforms to remove barriers to economic security for their justice-impacted residents. Meanwhile, bipartisan momentum has begun trickling up to the federal level as well, with Congress taking steps on both the record-clearing and licensing front and President Joe Biden pledging to adopt these and other second chance policies during the 2020 presidential campaign. This report highlights the transformational progress a diverse array of red, blue, and purple states made on these issues from 2017 to 2020 and offers case studies spotlighting some of the state leaders driving momentous change, including CLS in Philadelphia, which has played dual roles as a state leader advancing model reforms in Pennsylvania and a national expert providing technical assistance and support to community-based organizations in other states. This report also offers best practices and lessons learned from many of those successes for the benefit of state and federal advocates and policymakers. 3 Center for American Progress | A Criminal Record Shouldn’t Be a Life Sentence to Poverty As leaders at all levels of government work to “build back better” and address the nation’s legacy of racial injustice and persistent racial inequality, removing barriers to employment for workers with records is needed more than ever. In the midst of the devastating impacts of the COVID-19 pandemic and economic downturn, clean slate and fair chance licensing policies are critical steps to ensure a full and equitable recovery that does not leave tens of millions of system-impacted individuals and families behind. 4 Center for American Progress | A Criminal Record Shouldn’t Be a Life Sentence to Poverty Clean slate in the states While most states have laws on the books that allow people to petition to have certain records sealed or expunged, only a tiny fraction of individuals who are eligible for record-clearing ultimately do so due to the cost and complexity of petition-based systems. Research from the University of Michigan finds that just 6.5 percent of people with qualifying records get them cleared within five years of becoming eligible.13 And research from the Paper Prisons Project at Santa Clara University estimates that tens of millions of Americans who are currently eligible for record-clearing are falling into what is now known as the “second chance gap”—the ranks of people eligible for record-clearing who have not had their records cleared.14 As public awareness of the limitations of petition-based record-clearing systems grows, states are increasingly taking up clean slate automatic record clearance, using automation to clear eligible records without the bureaucratic hassle.